JCD 1403

ee.umc.org/decisions/81529

 

On Who May Direct Delegates

 

Baltimore-Washington Annual Conference was challenged for trying it.  Efforts by annual conferences to give directions of any kind to delegates are forbidden under church law.  Some groups in bodies that send delegates to General Conference have wanted to control their vote.  They have seen how, occasionally, individuals elected have not voted as expected.  The reason they wanted that delegate who did not follow through as anticipated became to them a wasted effort and a set back for their agenda.

 

But the Judicial Council has struck down every such attempt because of the principle that they are “delegates” and not “representatives.”  Representatives are expected to vote the way their constituents ask them.  Delegates are to be free to evaluate and integrate any new information that comes up in the considerations of the body to which they are delegated to participate and vote their conscience, rather than whatever bias their constituents preferred.

 

This time, though, the issue was not as much content as degree of participation.  Apparently, the delegation did not always participate in General Conference meetings and the annual conference wanted to be able to require participation.  The Judicial Council, in its rationale and two concurring opinions, strongly struck down even that degree of control of their delegates, leaving enforcement of taking part in the hands of the General Conference.

 

Having attended many General Conferences as an observer, I do not recall there being “attendance police” grabbing delegates from the cafeteria and dragging them up to plenary.  I confess to finding much of what happens in the sessions of the full gathering to be a “dog and pony show” instigated by the Council of Bishops to promote their agenda rather than allow full discussion of some of the key topics before the assembly.  I’d seen it happen at annual conferences and can understand why delegates could slip out just to get away from the propaganda or other waste of what little time they had for real dialogue.  That allowed me time to meet with some delegates on the side during plenary, which I found to be helpful as I advocated for fair treatment of clergy and better legislation.

 

Most delegates were good about attending.  I seldom saw many empty seats among the delegations, except up in the front where the bishops could sit.  Up there, only a handful of bishops were usually present and they sat close to the presiding bishop in order to be available in case the presider needed to consult about managing a knotty issue before the “house.”  Otherwise, bishops rarely attended the legislative sessions.

 

Delegates have to be free to change their vote or they would become obstructions to the body being able to make a decision.  Delegates have to be free to come and go as the circumstances of the General Conference move.  Annual conferences rarely send irresponsible people to General Conference and their judgment of the best use of their time while there should be trusted.  The rules for delegates’ actions are established early by the General Conference, freshly drawn each quadrennium.  Expectation of participation is set pretty high from the beginning.  So the separation of powers over who directs the delegates is well established.

JCD 1394

ee.umc.org/decisions/81129

Separation of Powers

Desert Southwest Annual Conference experienced a small probing attack on the issue of the judicial powers of a bishop that were not subject to any kind of review.  A group of pastors who may be sympathetic to the traditionalists’ side of church politics asked for a ruling on the right of bishops to drop charges.  (While dropping charges can and should happen in some cases, my experience is that bishops do not drop charges unless it may relate in “Arminian” conferences to LGBTQI cases.  Hence my presumption.  I may be incorrect.)

Being on the other side of the political spectrum from them, my question would be, should bishops be the ones to make a judgment about any complaint that in civil parlance would go to court officers like a district attorney.  I would have considered submitting a friend of the court brief in support of the request for a declaratory decision, though I would have expanded its scope considerably.  (Obviously, I was not paying attention when this matter was docketed.)

Unfortunately, the Council does not deal with such requests unless there is a case that is before the annual conference which could be changed based on the rulings requested.

I have argued for years that requests for declaratory decisions are prospective so that the Council can advise the Church on what to do under the Disciplinary passages in question.  I think the Council should have taken jurisdiction as it did in JCD 1383 which also had no specific case as a reference..

Here again, without a law degree and without long experience in civil law, I am probably missing something and not understanding why the Council rules on its jurisdiction as it does.  I am open to instruction on this!

JCD 1334

http://www.umc.org/decisions/69707

Confusing and Conflicting System

Let me try to reconstruct the situation in the case from the Texas Conference.  A woman pastor was accused of being involved in an affair.  The accusation became formal.  A just resolution was worked out.  One of the bodies that should have been a party to the just resolution, the conference relations committee of the Board of Ordained Ministry without providing a hearing with the woman pastor, refused to accept the terms.  The matter went to trial.  The trial court found guilt and the punishment was what had been worked out in the just resolution.  

If I had been the advocate at the time the conference relations committee decided there would be no hearing, I would have complained immediately to the bishop that the respondent did not get fair process rights as the 2008 Discipline required (Paragraph 363.1).  I wouldn’t have waited until conference.  The bishop, under Paragraph 415.3, could have intervened on the procedural (emphasis added) matter of failure to provide the respondent’s right to be heard and the accompanying rights a hearing with the committee required.  Had the bishop done that, there might not have been the expense and other costs a trial entails.

The Council has not been asked, so far, to look at Paragraph 415.3 as part of the bishop’s administrative responsibilities with respect to handling of complaints.  I made a point of it in my analysis of “moot and hypothetical” rulings of the Council last year.

The 1988 study commission added Paragraph 415.3 as a back up protection of fair process so that if there were mistakes made implementing fair process, the bishop could “ensure” it by stepping in, correcting the situation, and get the procedure back on track.  By doing that, the bishop was not dealing with the accusations or evidence substantively but only procedurally (administratively).

The word “substantive” and its various forms have not been properly parsed in this decision or all the others which have been based on JCD 799.  If we distinguish between having jurisdiction over deciding about procedural matters and deciding about guilt or innocence and identify “substantive” to relate to the latter only, I think we would be better able to sort out the various roles.

As the Discipline currently reads, the bishop’s judicial role includes monitoring and correcting process in administrative and judicial matters, including being required to answer questions of law at annual conference about procedures used in personnel cases.  That is not how the Council reads the Discipline.  There have been serious departures in certain cases (JCDS 1031, 1032, 1156, 1189, 1216,1230, et al) because the cases were clearly unjust.  The Council, by encouraging the use of Paragraph 415.3 for procedural questions, now could have legitimate grounds for what it did in those past cases.

I also happen to agree that bishops should be removed from judicial matters, as I have said innumerable times.  But that would leave a gaping hole in our system that would have to be filled some way.  Perhaps the nominating committee can take over all nominations that the bishop now makes for the groups that deal with personnel matters.  Perhaps a “counsel for the Church” can be elected to take over the tasks of receiving complaints, handling supervisory response tasks, setting up just resolution options or mediation, and so forth.  Maybe there should be an annual conference level court to be the first body to hear questions of law and even requests for declaratory decisions and appeals of church trials.

The system needs a serious review and the various tasks need to be realigned so that the separation of powers is handled better and so that cases like this one do not continue to fall in the cracks as they have since 1997 when JCD 799 was made.

JCD 1311

http://www.umc.org/decisions/67273

Authority of a bishop

The bishop of the California Pacific Conference set up two task forces that she chaired to handle problems she wanted the conference to resolve.  One of the problems was financial and the conference’s Council on Financial Resources (alternative name for conference council on finance and administration) challenged the task forces’ formation and nature since they were not initiated by the legislative body of the annual conference nor have to work through existing conference agencies before going to the plenary of the annual conference.  The second episcopal task force dealt with conference structure and its recommendations went straight to the plenary without being reviewed by any existing conference agency like the Rules Committee.

The bishop tried to make the five questions of law disappear by calling them moot and hypothetical.  She believed she had the authority to form the task forces under the Discipline and that the results of the task forces could be directly dealt with by the conference.

From the stated facts, it appears the conference was terribly busy sorting out things from its previous administration and so the bishop felt under her general supervisory authority as bishop that she could pull together groups to face issues that appeared to be falling through the cracks in the midst of the turmoil.  

I worry that certain bishops would use this tactic to circumvent the appropriate agencies of the conference who might be unsympathetic to his/her agenda.  JCD 831 reminds us that bishops are not members of the annual conference and therefore have no right to bring legislation to the plenary.  But some bishops keep trying!

In this case, the Council stated that a bishop may set up a committee to report back to the bishop.  Then those recommendations must be vetted by the appropriate agency of the conference and if valid, presented by the agency for amending and vote by the conference.  

But the bishop’s committees do not have authority to present directly without the vetting (disrespecting the Disciplinary constitutional authority of the respective conference agencies).

So in this case, the bishop’s belief she had the authority to have her task forces report directly to the conference was overturned by the Council.  Some of the recommendations of her financial task force, however, were accepted by Financial Resources council and presented to the conference and voted upon there.  The Council ruled those changes stand despite their original source.  They illustrated the proper way.  

The two questions on constitutionality of the bishop’s overstepping the separation of powers were dismissed by the Council as inappropriately raised.  See JCD 1304 as well as my blog posting on it.  They should have been raised separately as requests for declaratory decisions and not given to the bishop to rule upon.  But that was taken care of indirectly by the Council’s reversing the bishop’s decisions of law about how broad her authority was.  Her authority as bishop does not extend to providing legislation through personally chosen task forces.

Let me note that both question four and question five were arguments against the bishop’s actions more than either being questions of law or requests for legal review.  Hence the Council could refuse jurisdiction.  As recommended in my blog on JCD 1304, the questions needed to be based on the specific actions of the conference, such as votes on motions.  Without being specific, the questions became hypothetical.  That took the bishop and the Council off the hook for ruling on legitimate concerns.  

The paper I did on “Moot and Hypothetical” is available now from me.  

JCD 1202

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1323&JDMOD=VWD&SN=1201&EN=1204

The statement of facts about this case does not include the bishop’s ruling. Even though the Council vacated it, one wonders how a bishop could justify telling a pastor in any circumstance, without prior fair process (JCD 702), that s/he was unappointable.

In the cases of Revs. Winslow Wilson and Nathaniel Grady, both of whom were in prison, were put on leave of absence. Their respective conferences felt that they had each been incarcerated unjustly. Their appointability was never seriously in question. If church complaints were initiated against either pastor, no committee on investigation forwarded it to church trial.

In the instant case, after the bishop put in writing to the imprisoned pastor that he was unappointable, the formal complaint process has been begun. Appointability is a determination to be made by the conference, as I understand it in church law, and is not the prerogative of a bishop to determine. I do not know who advised the bishop to write such a letter or who gave him the impression such a letter was appropriate. I can guess, based on how frequently I have heard about bishops who thought they could make that determination on their own.

The Judicial Council, on the grounds of separation of powers, has stood up to the incursion of episcopal authority into employment matters. I hope their ruling receives better attention than has the Council’s rulings on some other matters (for example, JCD 1200 and its predecessors).

JCD 1188

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1309&JDMOD=VWD&SN=1100&EN=1189

The Rocky Mountain Conference case deferred in November 2010 (JCM 1169) was taken up. The questions of law related to his right of trial and the bishop’s right to end his right to trial. The bishop said the questions were moot and hypothetical.

The Council did not agree with the bishop. It said, “The questions presented were not moot and hypothetical; they were relevant but improper as questions of law to a Bishop.”

The Council stuck by its view that separation of powers prevents the bishop from dealing with such questions. I have argued a contrary position to that in my comments on JCDs 799 and JCMs 1130, 1145, 1153, and 1166.

The bishop is in a position, especially under the Discipline's Paragraph 415.3, to “ensure” fair process.

For true separation of powers, the episcopal office should not be involved in the nomination of the officers for the judicial and administrative committees and boards. S/he should not have the authority to determine whether a complaint goes judicial or administrative. The Cabinet members should not have the authority to place complaints on behalf of others. The Cabinet should not pick the trial court pool. The bishop should not pick the trial court presiding bishop. But the bishop is given all of those judicial responsibilities by the Discipline. Therefore, the bishop should have to take responsibility when the fair process systems break down and answer questions of law about them in order to get them reviewed by an outside entity with power to uphold church law.

As it is now, people who do the supervisory meetings, and hold the hearings for involuntary leave of absence, and other involuntary options in the administrative track tend to do as they please . . . or as the bishop allows . . . or as the bishop wants. Only if the bishop insists on careful following of fair process can harm be minimized to the respondents, complainants, churches, conference morale, and leadership credibility, as the Council has pointed out in JCDs 777 and 1156.

Bishops will get away with whatever they can get away with because the Council does not accept jurisdiction for questions of law challenges and requests for declaratory decisions (with a few exceptions).

The theory of separation of powers is great, except it is only applied to the back end of the administrative and judicial processes instead of the beginning.

With all the amateurs we have trying to do church law, no matter what the Council rules, there will continue to be attempts to get the conference leaders to follow the Discipline by the asking of questions of law and making requests for declaratory decisions.

JCD 1156

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=1277&JDMOD=VWD&SN=1100&EN=1189

The Council assigned some of its most assiduous members to review a case from Baltimore-Washington Conference. A pastor in trouble worked out a just resolution and avoided being forced onto involuntary leave of absence. When she requested return to appointment status believing that she had fulfilled the requirements laid on her under the just resolution, the bishop’s assistant determined that she needed to do more to get back in. Her advocate submitted a request for a declaratory decision, despite what JCM 1048 said.

The Council tends to go along with what happens at the annual conference level so it was a moment to rejoice when they clearly ruled in favor of the pastor.

This decision is clear. Conditions set prior to a leave of absence may not be amended by the Cabinet at the end of the leave to prevent a pastor from returning to appointment status. The only way to add new terms is to restart the supervisory process and follow fair process.

Unfortunately, that can be done in conferences where the bishop’s influence over the Board of Ordained Ministry is very strong. After all, most Cabinet members are appointed from the ranks of the BOM. All on the BOM were nominated by the bishop in the first place with no nominations from the floor possible. And all are subject to the appointive power of the bishop so their careers are on the line when Board members balk at what the bishop wants.

This decision points out the separation of powers that the Council perceives to be in effect. In this case, the Council enforced it. Hopefully, it will continue to do so.

The Council is to be commended in this case for the care they took to identify the polity properly and save the Conference from further embarrassment for their treatment of the pastor.

I wish the Council had asked for the Conference to report back on what happened. Frequently, in these kinds of cases, conference leaders find ways to punish the pastor rather than follow up in a reasonable way.

JCD 799

http://archives.umc.org/interior_judicial.asp?mid=263&JDID=839&JDMOD=VWD&SN=701&EN=800

This decision arose from pulling together questions of law from two separate trials of ministers accused of sexual misconduct. The questions of law dealt with procedural matters each respondent experienced and believed were in violation of the Discipline.

The Judicial Council made three important rulings.

One, they ruled that despite the separation of powers, the judicial branch had priority over the legislative with respect to who had the last word on the membership and character of a pastor when that pastor was dealt with in the judicial process.

For two quadrennia, the Discipline provided that the clergy session of the annual conference had to vote on a trial court conviction which changed the pastor’s standing in the conference. This was to be consistent with the constitution which gives to the annual conference the final word on character and membership status of pastors. However, JCD 799 held unconstitutional that provision which required annual conference action if a trial court decided to change the minister’s membership, ruling instead (based on another provision in the Discipline to which it gave precedence) that the Judicial Council has the last word once a case has been in the church's judicial system.

I find this result self-serving but it does eliminate two confusing circumstances. The first is that the annual conference might be swayed by factors other than the evidence seen and heard by the trial court. The second is this: if the trial happened before conference but the appeals had not been completed, the decision of the annual conference could be prejudicial to the appeals.

Two, they ruled that the question of law “must relate to the business, consideration or discussion of the conference session.” The only illustration the Council offered was that the question of law in this case related to a “part of the supervisory function of the district superintendent…” and not to anything which the annual conference had voted on during its plenary session. The Council affirmed the bishop’s ruling without explanation.

The upshot of that affirmation is that once a pastor is made subject to “supervisory function” of a superintendent, the pastor has no right to raise any question of law before the annual conference related to how he or she is treated no matter what the subsequent action of conference officers are after that. The Council indicated that questions of law about any inappropriate actions are to go to the presider of the next hearing/trial in order to retain appeal rights beyond the annual conference and are not appropriate before the annual conference.

On paper that makes some sense. But in practice, there are two major problems. First, sometimes the bishop does not follow the Discipline when taking action against the pastor. In such cases, there are no hearings let alone presiders to whom the pastor can appeal. Second, the chairpersons of the Board of Ordained Ministry and of the Committee on Investigation are pastors subject to the appointive powers of the resident bishop, as are all clergy members of those respective groups. In the case of a church trial, the presiding bishop for the trial is an appointee of the resident bishop, chosen because she or he may be sympathetic with what the resident bishop wants. Once a procedure has moved to the appeals level, this new precedent in JCD 799 defers to the judgment of those closest to the decision-making, essentially leaving all questions of law to those under the influence of the resident bishop. More on that in discussion of JCD 1094.

Three, the Council established guidelines for bishops to determine what were moot and hypothetical questions of law. Those guidelines are now written into the Rules of Practice and Procedure of the Judicial Council. They retain the Disciplinary strictures about who may raise the questions, how they are to be recorded, that the bishop must answer if only to say they are moot/hypothetical, and submit them to the Council.

It appears that to the Judicial Council, a matter is moot if it has been decided already by a previous judicial action, should have been taken to a hearing presider in the next step of the judicial process rather than to the annual conference, or has become a matter under the supervisory function of the superintendent and is thus now “judicial” and outside the authority of the bishop under the doctrine of the separation of powers. A matter is hypothetical if the question of law does not refer to a specific case where an answer to the question would have a possibility of changing the results of that event.

This decision fails to deal with three passages of the Discipline. Two of them relate to the nature of questions of law, neither of which includes any restrictions on what questions may be raised. The Council points to a JCD from 1946, based on a passage no longer in the Discipline which does not require rulings on moot and hypothetical questions. That is their source of authority.

The third passage not considered by the Council is the one which lists as a duty of the bishop to ensure fair process through monitoring all of the judicial and administrative actions of annual conference groups charged with those procedures. If the bishop is to ensure, then the bishop must be subject to questions of law about those procedures.

In practice, bishops have tended to call every question of law they did not want to answer “moot” and/or “hypothetical.” The Council has not always challenged the bishops when they did that. So bishops continue to avoid their responsibilities by trying to pass them off this way, often successfully.

As a consequence, advocates have lost a tool in their fight for justice. Until this ruling in 1997, a number of injustices were reconciled by Judicial Council decisions. Since then, too many questions of law have tended to go unanswered, even those outside the administrative and judicial processes.